Circumcision of healthy children

The issue of circumcision of healthy male
children has been raised in graphic form in Australia in an
article by Boyle and others.1
They conclude2 that
non-therapeutic circumcision of unconsenting minors is
unethical, useless and traumatic, and that it causes lasting
harm physically, sexually, and often, psychologically.
Consequently, they suggest that it is "overdue for
recognition by the legal community as sexual
mutilation". The description of the procedure3 adopted by those writers is, if taken
alone, certainly horrific enough. In the authors'
words:

"During circumcision, the baby's
sensitive foreskin is crushed audibly, and the raw flesh is
cut with scissors. In all neonatal circumcisions, forceps or
other probes are inserted into the delicate foreskin,
scraping, tearing apart and destroying the normal erogenous
tissues of the child's sex organ. This causes
considerable pain and leaves the raw glans open to
infections, with any resultant scar tissue on the glans
further compromising sexual sensitivity. Tearing the normal
protective adhesions between the glans and foreskin resembles
ripping a fingernail from its quick. If a clamping device is
used, the foreskin is crushed over a bell-shaped device to
enable amputation."

Despite this more than graphic description,
there has been relatively little in the way of case law
pertaining to this procedure. The matter was referred to in
obiter dicta in the notorious decision of the House of Lords
in R v Brown,4 where Lord
Templeman had said:5

"Surgery involves intentional violence
resulting in actual or sometimes serious bodily harm but
surgery is a lawful activity. Other activities carried on
with consent by or on behalf of the injured person have been
accepted as lawful notwithstanding that they involve actual
bodily harm or may cause serious bodily harm. Ritual
circumcision, tattooing, ear-piercing and violent sports
including boxing are lawful activities."

This is with respect, a most curious
statement: in the case of the latter instances, it is
usually6 the participant who
consents to the activity, whereas in the case of ritual
circumcision, the object of the procedure will not be in a
position to protest. This is particularly so in the case of a
Jewish male child who is ritually circumcised on the eight
day of his life.7

The McKibbin decision

There can, of course, be not doubt that the
issue has arisen in respect of negligent surgical procedures.
This, in St Margaret's Hospital for Women (Sydney) v
McKibbin,8 the 21-year-old
plaintiff had had a negligently performed circumcision
performed on him when he was six days old. This reduced the
size of his penis by nearly one-third. He was able to
urinate, but it sprayed his legs if he was standing: erection
and seminal discharge was possible and he was able to father
children. Sexual intercourse was also possible, although it
would present greater difficulties than it would for other
men. However, the cosmetic deformity could not be improved by
surgery and it had resulted in a number of social and
psychiatric problems for the plaintiff, who avoided women,
was sexually frustrated and often depressed. He never formed
a relationship with a woman and had never had sexual
intercourse. Psychiatric evidence suggested that the
psychological harm to the plaintiff was permanent and could,
at a later stage, seriously interfere with his capacity to
work.

At the trial of his action for damages, the
jury returned a verdict for $500,000, a sum regarded as
excessive by the New South Wales Court of Appeal, which
ordered a new trial. The second jury subsequently returned a
verdict for $275,000. The defendant hospital appealed again
on the ground that the sum was manifestly excessive. By a
majority, the New South Wales Court of Appeal dismissed the
appeal.

McHugh JA, with whom Priestly, JA agreed, was
of the view9 that the jury could
reasonably conclude that the psychological condition of the
plaintiff might deteriorate to the point where there was a
reasonable prospect that he would withdraw from society and
find difficulty in maintaining employment. The judge was
further of the view that it was not to the point that the
plaintiff's residual organ was adequate for its normal
functions. He stated:

"Modern sexologists have punctured the
myth that sexual adequacy depends upon the size of the penis.
But the myth persists. It could hardly be otherwise.
Throughout human history the phallus has been seen as a
symbol of power."10

Although the jury's view of the
evidence might, he considered,11 have been extreme, it was reasonably
open to them. In his dissent, it is not without interest that
Mahoney JA did rely12 on the
writings of such modern sexologists in order to seek to find
that the award was excessive.13

McKibbin is, of course, a
straightforward decision on quantum of damages, the
negligence having been admitted. However, the facts of the
case do seem to bear out at least some of the comments made
by Boyle and his colleagues regarding some of the actual and
excessive risks of the process.14 However for the purposes of this
commentary, that is not the major issue: the procedure in
McKibbin must have been authorized and it is the issue of by
whom and when it should, or might, be so authorized that was
the issue in Re J.

The Re J decision

In Re J (Specific Issue Orders:
Child's Religious Upbringing and
Circumcision)15 the father
had applied for a specific issue order16 that his five-year-old son be
circumcised. The father was a Muslim, though not especially
observant. The mother was a non-practising Christian who was
bringing up the child in an essentially secular household.
The trial judge had accepted that the mother regarded
circumcision as an important part of the child's
identity as a Muslim, but rejected the application on the
basis that the procedure would be not be in the child's
best interests because the mother was opposed to the
procedure and because only a small minority of the
child's peers would be circumcised. The father appealed
unsuccessfully to the English Court of Appeal.

First, Thorpe LJ described17 the trial judges's judgment,
which he had summarized18 in
some detail, as "impregnable" and noted that
counsel for the appellant therefore faced an "uphill
struggle". Nevertheless, the arguments which she had
presented are of interest for the purposes of this article.
The first referred to the issue of religion. It was argued
that the trial judge had confused the child's religion
with the child's religious upbringing in the sense,
that during the first two years of his life, his parents
were, to some degree at least, practicing Muslims and the
parents' separation could not terminate his religion,
particularly in the absence of any active step by his mother
to do so. Thorpe LJ considered19 that, theoretically at any rate,
that argument was correct, even though it weighed very light
in the scale that the judge was required to balance as to
whether the procedure was in the child's best
interests. As the judge pointed out, there were differences
in the ways in which children become part of religious
communities. On the other hand, some regard their religion as
being derived from their parental heritage; on the other
hand, some recognize their religion as a result of some
ceremonial induction or initiation. Nevertheless, in respect
of newborn children, Thorpe LJ was of the opinion that such
child did

"not share the perception of his
parents or of the religious community to which the parents
belong. A child's perception of his or her religion
generally depends on involvement in worship and teaching
within the family. From this develops the emotional,
intellectual, psychological and spiritual sense of belonging
to a religious faith."20

It followed in Thorpe LJ's view, that,
for practical purposes, courts had correctly emphasised the
child's religious upbringing rather than the
child's religion, on which there had been no reported
case law.

On that issue, Schiemann LJ considered21 that it "bristles with
conceptual and philosophical issues". However, his
Lordship did not attempt to deal with them, although he
commented22 that it was
apparent that adherents of the Islamic faith would regard the
boy as being part of that faith, as did his father. At the
same time, there was no reason to suppose that the child do
so regard himself or, indeed, consider himself as belonging
to any particular faith. Butler-Sloss P did not
express23 any opinion on the
matter.

The matter of religion has, necessarily, to
be placed in context, especially in view of the opinions
expressed by Boyle and his co-authors. The relationship
between religious belief and practice has been a source of
dispute for a considerable time, although it has been more
directly addressed in the United States than in England or
Australia. Thus, in Cleveland v United States,24 in the United States Supreme Court,
Douglass J stated:

"It is also urged that the requisite
criminal intent was lacking since petitioners were motivated
by religious belief. That defense claims too much. If upheld,
it would place beyond the law any act done under claim of
religious sanction."25

More recently, in the well-known United
States Supreme Court decision in Employment Division v
Smith,26 Scalia J
noted27 that exercise of
religion

"often involves not only belief and
profession, but the performance of (and abstention from)
physical acts: as in being with others for a worship service,
participating in a sacramental use of bread and wine,
proselytizing, abstaining from certain foods or certain modes
of transportation".

Although Scalia J's analysis seemed to
be concerned largely with Christian observances, he could
have properly included ritual circumcision in connection with
other religions. Scalia J continued by saying that a State
within the United States would be prohibiting the free
exercise of religion if it were to ban such acts or
abstentions only when they were engaged in for religious
reasons, or because of the religious belief that they
display. He went on28 to say
that the United States Supreme Court had never held that
individuals' religious beliefs excuse them from
adherence to otherwise valid law prohibiting conduct that the
State is free to regulate. The question is quite plain, even
though the answer is not: if Boyle and his co-authors are
correct in their contention that male circumcision does (or
should constitute a criminal assault, then the fact that it
is carried out in the exercise of religion does not make it
any less of an assault. As will be remembered, Lord Templeman
in R v Brown29
specifically exempted ritual circumcision, though he did not
justify the exemption and, contextually, the exemption is
less than valid.

It had also been submitted on behalf of the
father in Re J that any considerations against
circumcision were "either transient or, if not
transient, speculative". Thorpe LJ took the view30 that the submission disregarded the
realities of child development. In the judge's own
words:

"Fear, pain, despair or a sense of
betrayal may all be transient in the temporal sense, but
still inflict emotional and psychological trauma that will
burden a child for life."31

The view shared by Boyle and his co-authors
who have asserted32 that the
procedure causes behavioural and neurological change,
diminished self esteem and body image, sexual deficits and,
often, lifelong related stress.

However, Thorpe LJ continued33 by saying that each case must turn
on its own particular facts and he did not wish to be taken
as laying down general guidance:

"The only certainty is that social
attitudes to male circumcision will remain extremely fluid.
The only generalization I would feel confident to express is
that, in those communities where it is the practice to carry
out the circumcision of a male child within days of birth,
there is much less likelihood of a forensic
dispute."

Indeed, Thorpe LJ concluded by saying that
the only point of principle that the case decided was that
the relevant legislation34 did
not enable one parent to arrange circumcision without the
consent of the other. The trial judge had accepted the
argument that the operation was of considerable consequence
and was irreversible. Hence Thorpe LJ was of the view that it
must be regarded as falling into the category which , when
there was disagreement between holders of parental
responsibility, required submission to the court for
determination. That point was taken up by Butler-Sloss P who
commented:35

"The decision to circumcise a child on
a ground other than medical necessity is a very important
one; the operation is irreversible, and should only be
carried out where the parents together approve of it, or in
the absence of parental agreement, where a court decides that
the operation is in the best interest of the
child."

In the end, Thorpe LJ is surely correct when
he stated that Re J really did not
decide36 a great deal,
but it has raised a number of issues which, when taken in
context, suggest the possibility of further conflict. Both
Thorpe LJ and Butler-Sloss P emphasized the irreversible
nature of the procedure and seemed cautious about permitting
it, certainly in the case of a child of the age in question,
Thorpe LJ did comment specifically37 that many of the issues could have
not have developed but for the practice of the father's
community to delay the procedure until the child was about
seven years old. One can only speculate about how an
identically constituted court would have resolved a dispute,
say, between a Jewish mother, who wished the procedure to be
carried out, and a non-Jewish father who did not. In
addition, the case does nothing to allay the concerns about
the procedure itself which have been raised by Boyle and his
colleagues regarding the legality of the procedure,38 although it must be of some
satisfaction to them that the operation was not
authorized.

One final point arises out of Re J and
out of the article by Boyle and his co-authors: they point
out39 that female genital
mutilation, referred to as female circumcision, is illegal in
two Australian jurisdictions40
and elsewhere. The nature of that practice has been clearly
documented41 and attracts
general, and proper, revulsion; however, given present
practice, what court or, more especially, legislature would
be prepared to clarify the law in the manner urged by these
writers?

The Re A decision

In Re J, Butler-Sloss P
referred42 to sterilization
which, in relation to young women with intellectual
disabilities, has caused considerable problems in Australia
in recent years.43 However, the
issue of sterilization in relation to males has only arisen
in one instance - in the recent case of Re A (Male
Sterilisation),44 which was
decided by an identically constituted Court of Appeal to that
in Re J. The relevant facts in Re A were that
the person who was the subject of the application was a
28-year-old male who had Down's Syndrome and was on the
borderline between significant and severe intellectual
impairment. He lives with his mother who was 63 years old. A
major cause for her concern was that, as her health declined,
she would be unable adequately to supervise her son and that
he might make a woman pregnant. The mother, hence, sought a
declaration45 that
sterilization was in the son's best interests, but any
such declaration was opposed by the Official Solicitor. The
trial judge found that the son was sexually aware and
active,46 but also had a high
degree of care and supervision which substantially reduced
any possibility of his indulging in a sexual relationship.
Accordingly, although the mother's application was
supported by expert medical evidence, the trial judge refused
to grant the declaration on the grounds that the advantages
to the son of his undergoing a vasectomy were not clear; that
the risks of his entering into a casual sexual relationship
were very low; and lastly, that the effect on him which might
result from such a relationship would be minimal. The mother
unsuccessfully appealed to the Court of Appeal.

The first issue raised by Butler-Sloss P
related the nature of the object's best interests after
having noted47 an earlier
comment in Re MB (Medical Treatment)48 to the effect that best interests
were not limited to best medical interests, she stated that
in her view, the expression encompassed "medical,
emotional and all other welfare issues". In the case of
sterilization operations, Butler-Sloss P also emphasized that
it was the courts, rather than medical practitioners, who
were required to make the decision as to whether it was in
the patient's best interests that the operation be
performed. At the same time, she adopted the view of Lord
Jaucey in Re F49 that
[I]n the case of a long-term incompetent, convenience to
those charged with his care should never be a justification
for the decision to treat".

From a comparative standpoint, that view has
not generally been accepted: in Australia, Warnick J of the
Family Court of Australia in Re Katie50 specifically noted the benefits to
the child's mother were a hysterectomy to be carried
out. Although he emphasised that the welfare of the child to
be regarded as the paramount consideration, it was necessary
to look at her total circumstances. She had been raised as
part of the family and it was intended that she continue to
be so. In view of that, the abilities of the family,
especially here mother, should be maximised so as to cope
with the child's needs: "Thus the interests of
Katie are inextricably linked with the ability of her parents
to cope with the burdens of Katie's care."51 It should also be said, in that
comparative context, that in only one case, Re
Sarah,52 was the operation
not authorised, and, in that case, the young woman did not
live with her family. In the English context, as Butler-Sloss
P noted,53 there have been case
of women with intellectual disabilities where the procedure
has been authorised54 and
others where it has not.55
Butler-Sloss P commented56
that, in each case, the decision of the court was made in the
best interests of the person concerned.

However, the learned President continued, an
application on behalf of a man for sterilization was not the
equivalent of an application with respect of woman and was
not a matter of equality between the sexes, but a balancing
exercise on a case-by-case basis:

"There are obvious biological
difficulties and sexual intercourse for a woman carries a
risk of pregnancy which patently it does not for a man.
Indeed there is no direct consequence for a man of sexual
intercourse other than the possibility of sexually
transmitted diseases."57

However she went on to say that, in the case
of a man who has an intellectual disability, neither the
birth of a child nor disapproval of his conduct was likely to
affect him to a significant degree except in exceptional
circumstances. The exceptional circumstances to which
Butler-Sloss referred included the subject's freedom of
movement which, in turn, might lead to his quality of life
being diminished. She also suggested, but did not specify,
that there might be other disadvantages to the subject which
might require a court to authorize the operation. Likewise,
Butler-Sloss P expressed the view that it might be necessary
to evaluate the nature and the degree of risk attached to the
approval or disapproval of the operation. Again
unfortunately, perhaps, these risks were not specified: the
operation itself is relatively straightforward58 and there appear to be little risk
of side-effects.59 Neither
would be likely to be of any significance to a male person
with an intellectual disability. Butler-Sloss P also
commented that it might be necessary for a court to evaluate
the nature and degree of risk which might be attached to
approval or refusal of the operation.

In the instant case, Butler-Sloss
considered60 that it was
necessary to focus on the best interests of the son: it was
clear from his mother's evidence that he would continue
to be the object of close supervision. If the operation were
not to be approved, it would inevitably affect the mother,
but that would not affect the level of supervision. She also
expressed the view that, "[I]f sterilization did take
place, it would not save [him] from the possibility of
exploitation nor help him cope with the emotional
implications of any closer relationship he may
form".61 It was also
clear, she continued, that, from the evidence of carers in
the day center which he attended, the level of supervision
which was exercised did not depend upon his fertility.
However, it is important to point out that Butler-Sloss P
emphasized62 that, when the son
was admitted to local authority care, the possibility that he
might enter a sexual relationship with a woman63 might affect the degree of freedom
he might otherwise enjoy and if his quality of life were
to be diminished64 that
would be a reason to seek, at that time, a declaration that
sterilization would be in the son's best interests.

Thorpe LJ agreed with the President, though
he admitted65 that on first
reading, he had not been sure of his conclusion. As a general
point, Thorpe LJ accepted66
expert evidence to the effect that the young man's
fertility was a genuine disadvantage:

"In our society vasectomy has become
the preferred method of contraception for many males who wish
to separate their sexual and procreative functions. The
obligation of society is to minimize the consequences of
disability by vouchsafing the disabled wherever possible the
rights and freedoms vouchsafed to the majority who have been
spared disability."

Thorpe LJ then turned his attention67 to the way in which courts should
proceed when dealing with such cases and considered that, in
the absence of any statutory checklist or direction, the
trial judge should "draw up a balance
sheet".68 The first entry
would consist of a factor or factors of actual benefit: in
the present instance, the entry would refer to the benefits
of "foolproof" contraception. On the other hand;
a disadvantage would be the apprehension, risk and discomfort
inherent in the operation.

"Then the judge should enter on each
sheet the potential gains and losses in each instance making
some estimate of the extent of the possibility that gain or
loss might accrue. At the end of that exercise the judge
should be better placed to strike a balance between the sum
of the certain and possible gains against the sum of the
certain and possible losses."69

It followed, Thorpe LJ stated, that it was
only if the account was in "relatively significant
credit" that a trial judge would conclude that the
application was likely to advance the best interest of the
relevant person.70

However, as had Butler-Sloss P,71 Thorpe LJ emphasized that the
failure of the appeal did not preclude a fresh application in
the future were there to be fresh evidence available.72 Schiemann LJ agreed with both
Butler-Sloss and Thorpe LJ.

Conclusions

What then do these cases tell us? At one
level, it seems as though courts are less ready to order
surgical procedures on male children. The alacrity with which
procedures have been carried out in Australia on young women
with intellectual disabilities has, in this writer's
view, been somewhat alarming.73
In that context, the cautionary notes sounded in both cases
seem to be desirable, but again, it is hard to ignore the
fact that the objects of the procedures were male.

In both cases, too, there were significant
factual matters which militated against the drawing of global
conclusions, both of which related to considerations of time.
In Re J, Thorpe LJ had referred74 to the practise of the Muslim
community of delaying the procedure; in Re A, it is
clear that the application had not been brought at the
appropriate time. Re J does not attempt to deal with
the concerns raised by Boyle and his colleagues75 and Re A does not really get to
grips with the issue of sterilization of people with
disabilities at large. At the same time, the issues which
these two cases raise are important, even if they do not
resolve them. For that reason, they are of interest and put
courts and commentators on notice for the future.